Is this What Winning Feels Like? MVP & ACP Legal Update

The Army Corps’s permit allowing Mountain Valley Pipeline (MVP) to blast through more than 1,000 streams? Back to the drawing board.

The Forest Service’s permit for MVP to slice across the Jefferson National Forest? Rejected.

What was the Federal Energy Regulatory Commission (FERC) forced to do as a result? Stop construction activity along all portions of the MVP for nearly four weeks.

What’s next? On behalf of CCAN and other groups, Appalachian Mountain Advocates (Appalmad) filed a challenge to FERC’s approval of the entire pipeline with the D.C. Circuit. Oral argument will take place in 2019.

And here’s where we stand with Dominion’s Atlantic Coast Pipeline (ACP):

Dominion’s permit from the National Park Service to cross the iconic Blue Ridge Parkway? Tossed. And the agency’s new, mostly unchanged permit is being challenged.

The Fish and Wildlife Service permit protecting endangered species from the ACP? Insufficient. That agency’s re-issued permit is also being challenged.

Dominion’s permit to cut across the Monongahela and George Washington national forests? Stayed. A decision is forthcoming.

The Army Corps’s permit allowing ACP to blast through streams in West Virginia? Stayed. Argument will take place later this year.

What was FERC forced to do? Stop all work on the ACP for over a month.

What’s next? On behalf of CCAN and other groups, the Southern Environmental Law Center and Appalmad filed a challenge to FERC’s approval of the entire pipeline with the Fourth Circuit. Oral argument will take place in 2019.

—

In my eight years at CCAN fighting for clean energy and against dirty energy projects, I’ve never seen us make more dents in the armor of a dirty-energy project than we are with these two pipelines. In the wake of a sobering report on climate change, our work to protect our communities and planet is more important than ever. This critical work includes fighting projects such as the Mountain Valley and Atlantic Coast pipelines, which would lock us into reliance on polluting fossil fuels for decades to come.

I’ve been inspired by the years — YEARS — that opponents have spent fighting these pipelines on the ground. While they’ve received (most of) their permits, not one permit was granted without controversy or a fight. The Virginia Department of Environmental Quality was forced to create an entirely new process by which they reviewed the pipelines. Thanks to your outcry, Virginia gave ACP and MVP more scrutiny than neighboring Maryland gave a pipeline there. The State Water Control Board came this close to rejecting water permits for the pipelines, voting 4-3 to approve the permits after an unprecedented level of scrutiny. Even FERC itself was divided. When the Commission issued its approval of the projects, it did so at 7pm on a Friday with one of the three commissioners dissenting.

Now we’re attacking each of those shoddy permits in court. For years we’ve been warning that the companies behind the pipelines have been pushing regulators to approve key permits without considering the full scope of their destruction. In decision after decision, courts are validating that concern. One court in particular — the U.S. Court of Appeals for the Fourth Circuit — is doing what the federal government should have done all along: protecting the public and the environment from these harmful and unneeded pipelines.

The newest news is that late last week the Army Corps of Engineers suspended a permit that the fracked-gas Mountain Valley Pipeline must have in order to build through waterways in Virginia. This action follows Tuesday’s federal court ruling throwing out MVP’s stream crossing permit for southern West Virginia. That now-vacated permit would have allowed MVP to blast a trench through the beloved Gauley, Greenbrier, and Elk rivers. Our attorneys at Appalachian Mountain Advocates (Appalmad) argued our case so convincingly that the court only needed two business days to decide to toss the permit. We followed up this win with a letter to FERC asking it to halt all work on the pipeline, as FERC’s order approving the project requires that all permits be in place for construction to take place anywhere along its 303-mile route.

The issue before the court was this: When West Virginia certified the Army Corps’ nationwide permit back in 2017, it placed a condition that stream crossings have to be completed within 72 hours. States have the authority to include additional conditions when they certify the Army Corps’s blanket permit, which they do every five years. Essentially, West Virginia said that it had reasonable assurance that state water quality standards would be met if the project met the conditions of the Army Corps’ nationwide permit and the project took 72 hours or less to cross waterbodies. We argued — and the court agreed — that MVP hadn’t even tried to comply with West Virginia’s 72-hour time limit when planning to cross four major rivers, and that this failure meant that the entire permit, not just as it applied to those four crossings, was therefore defective.

West Virginia officials are now trying to rewrite their own rules. After the Fourth Circuit indicated that it had major concerns with the permit over the summer, West Virginia Governor Jim Justice wasted no time in issuing a statement promising to “expedit[e] the construction of this pipeline.” Might Governor Justice’s devotion to the MVP have something to do with the fact that a top adviser, Bray Cary, serves on the board of EQT? EQT, of course, is a main backer of the MVP and Mr. Cary holds millions of dollars in EQT stock.

Appalmad responded with a letter explaining the many reasons why the state can’t rewrite its rules at this stage. And, during oral argument two weeks ago, the judges appeared highly skeptical of West Virginia’s shenanigans. Along with our friends at Appalmad and West Virginia Rivers, we are closely monitoring any developments.

What does this defeat mean for the MVP? Another year of delay, most likely. Instead of a blanket, one-size-fits-all permit that the Corps had tried to use, it now has to issue an individual permit that’s tailored to the specific area. This process could take up to a year and will include opportunities for public comment. Stay tuned for more from us on how to participate in that process.

The court’s decision to throw out the Army Corps’s water permit for MVP is just one of a number of defeats that pipeline has faced. In July, the Fourth Circuit vacated decisions by the Bureau of Land Management and the Forest Service authorizing the construction of the MVP across the Jefferson National Forest.

In response, Commission staff halted construction activity along all portions of the MVP. When FERC staff lifted that stay for most of the MVP, two commissioners issued a scathing press release raising “significant concerns” with the staff’s action.

To reiterate: The Army Corps’s permit for MVP to blast through more than 1,000 streams? Back to the drawing board. The Forest Service’s permit for MVP to slice across the Jefferson National Forest? Rejected.

All the while, the MVP project is getting further delayed and more expensive. MVP has told investors that its anticipated completion date of late this year is no longer viable. And, in a revised estimate, pipeline developers now expect to spend $4.6 billion on the project, a jump of about 25% over the anticipated $3.7 billion.

Meanwhile, Dominion’s Atlantic Coast Pipeline is also reeling from multiple setbacks. Dominion’s permit from the National Park Service to cross the iconic Blue Ridge Parkway? Tossed. The Fish and Wildlife Service’s permit protecting endangered species from the ACP? Insufficient. Dominion’s permit to cut across the Monongahela and George Washington national forests? Stayed. The court’s order to stay construction through the national forests was the third time in four months that the Fourth Circuit has vacated or stayed federal authorization for the ACP.

These invalid permits caused FERC to issue a stop work order for the ACP. While FERC lifted the stay as soon as the agencies issued new, rushed permits, our friends at the Southern Environmental Law Center are challenging both of those re-issued permits.

And the Fourth Circuit’s work on the ACP isn’t over yet. Judges recently heard arguments to Virginia’s approval of the project under the Clean Water Act. The court also heard oral argument in the challenge to Dominion’s permit to cross national forest land — the same permit it stayed days earlier — and is expected to rule on it in the coming months.

Our biggest cases yet will be heading to federal courts later this year. We are challenging FERC’s permit, which underpins both projects. This challenge will give courts an opportunity to scrutinize the need for these projects.

Together, we’ve been chipping away at these pipelines through protests and activism and camptivism and tree-sits and community monitoring efforts and lawsuits. Now, two of the largest interstate fracked-gas pipeline projects in the Eastern US are in jeopardy. This wouldn’t have happened without you. Thank you for all you do!